This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Robin Tuluie, et al.,





Randy J. Albertson, et al.,



Filed December 12, 2006

Affirmed in part, reversed in part, and remanded; motion granted

Shumaker, Judge


Wright County District Court

File No. CX-04-4164




Diane B. Bratvold, Dan J. Gendreau, Shanda K. Pearson, Rider Bennett, LLP, 33 South Sixth Street, Suite 4900, Minneapolis, MN 55402 (for respondents)


Karen E. Marty, Marty Law Firm, LLC, 3601 Minnesota Drive, Suite 800, Bloomington, MN 555435 (for appellants)


            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Stoneburner, Judge.


U N P U B L I S H E D   O P I N I O N




            On appeal from summary judgment granting an easement in favor of respondents over appellants’ land, appellants contend that the district court erred in ruling that respondents are entitled to an easement.  By notice of review, respondents argue that the court erred in limiting the size of the easement.  There exist some genuine issues of material fact for trial, and thus we affirm in part, reverse in part, and remand.



            In this appeal, we must decide whether the district court erred in granting to the respondents an easement for ingress and egress over the appellants’ land.

            The lands in question are part of a platted subdivision of eight parcels known as River Hills in Wright County.  Appellants Randy Albertson and Susan Albertson own Lot 1.  Respondents Robin Tuluie and Katherine Solle-Tuluie own Lot 2.  Lot 1 abuts County Road 19.  According to the plat, Lot 2 lies west of and abuts Lot 1 as well as an unplatted parcel.  Lot 2 also abuts platted parcels to the south and the west.  The plat does not show what lies to the north of Lot 2.  There is a strip of land running from the southeastern corner of Lot 2 along the southern portion of Lot 1 to County Road 19.  This is the land the Tuluies and their predecessors have used as a driveway or roadway to and from County Road 19 and as to which the district court granted an easement.

            Marcus and Agnes McNabb platted River Hills in 1966.  The recorded plat shows a 33-foot “Easement Road” along the southern boundary of Lot 1 connecting Lot 2 to County Road 19.

            The McNabbs conveyed Lots 1 and 2 by warranty deed to a single purchaser in 1970 with the designation “according to the plat . . . of record.”  With that same designation, various conveyances of both lots together were made to single purchasers until 1987, when Beatryce Moyle conveyed Lot 1 to Steven Kuhbander by warranty deed.  That deed referred to the “plat of record” and stated that Lot 1 was “[s]ubject to Restrictions, Reservations and Easements of record, if any . . . .”  On the same day, Moyle sold Lot 2 to Kuhbander by contract for deed, with the description “according to the plat of record.”

            Kuhbander defaulted on the contract for deed in 1990, and Moyle cancelled the contract and regained possession of Lot 2.  She then conveyed that lot by warranty deed to Feekut Home Builders in 1992 “with an Easement for road purposes 33 feet in width adjoining the South boundary line as shown on the Plat as to Lot 1.”

            In 1992, Feekut cleared trees from the road described in the plat and built a gravel driveway on it.  Feekut also built a home on Lot 2 and then sold it to Derrick and Anne Monroe in 1992.  The deed referred to “an Easement for road purposes, 33 feet in width, adjoining the south boundary line as shown on the plat for Lot 1, River Hills.”  The Monroes maintained and used the driveway from 1992 until 2001 and paved it in 1995 or 1996.

            After the Monroes bought Lot 2, Lot 1 was forfeited to the federal government in 1993, which in turn conveyed the lot by quitclaim deed to James and Beth Nielson.  The Nielsons conveyed Lot 1 to the Albertsons in 1999 by warranty deed that recited that the conveyance was “together with all hereditaments and appurtenances belonging thereto, subject to the following exceptions: Restrictions, reservations and easements of record, if any.”  The driveway was plainly visible when the Albertsons bought Lot 1, and they and the Monroes maintained the driveway from 1999 to 2001 while the Monroes used it for ingress and egress.  The Monroes also stored a propane tank within the easement boundaries, and the Albertsons used the driveway to move their camper across their land.

            In 2001, the Monroes conveyed to the Tuluies by warranty deed “Lot 2, River Hills . . . [t]ogether with all hereditaments and appurtenances belonging thereto[.]”

            The Tuluies and the Albertsons began to feud over the use of the driveway in 2003, and the Tuluies brought this action for declaratory judgment to establish their claim of easement over Lot 1.  The district court granted summary judgment to the Tuluies awarding them a perpetual, non-exclusive easement over Lot 1 for ingress and egress, and declared that “[t]he dimensions and location of the Easement are limited to the dimensions and location of the present paved driveway . . . .”  The court also provided in its order that the Tuluies have the right, but not the duty, to maintain the easement and the right to enter Lot 1 beyond the easement area as necessary for reasonable maintenance.  The order also permits the Albertsons to use the easement, prohibits parking on the easement, and requires the Tuluies to remove the propane tank from the easement.  Finally, the district court declared the “Easement Road” shown on the plat is “a nullity and of no legal effect.”

            The Albertsons contend the court erred in granting the easement, and the Tuluies argue that the court erred in limiting the easement to the area of its current use.


            A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits, show that there is no genuine issue of material fact and a party is entitled to judgment as a matter of law.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  On a motion for summary judgment, “a court may not weigh the evidence or make factual determinations.”  State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn. App. 2004) (quoting Fairview Hosp. & Health Care Servs. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 341 (Minn. 1995)).  “On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

            The Albertsons argue that the district court erred as a matter of law by granting respondents an easement, and the Tuluies claim the court erred as a matter of law by limiting the easement as it did.  Although the district court did not specify the type of easement it granted, the parties agree that it granted an implied easement by necessity.

            The elements of an implied easement are: “(1) a separation of title; (2) the use which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.”  Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943).  Except for the necessity requirement, the other factors are only aids in determining whether an implied easement exists.  Olson v. Mullen, 244 Minn. 31, 40, 68 N.W.2d 640, 647 (1955).  To be “necessary,” an easement need not be indispensable, but must be reasonably necessary for the beneficial enjoyment of the property.  Romanchuk, 215 Minn. at 163, 9 N.W.2d at 426; see also Clark v. Galaxy Apartments, 427 N.W.2d 723, 727 (Minn. App. 1988) (holding that more than mere convenience is required to establish necessity).  “The party asserting the easement has the burden of proving necessity.”  Clark, 427 N.W.2d at 726.  The necessity must have existed at the time of separation of title.  Olson, 244 Minn. at 41, 68 N.W.2d at 647.  The Tuluies contend that the easement is necessary because their parcel is landlocked.

            An easement by necessity must be based on the conditions of the property at the time that the landlocked parcel was originally conveyed.  See Kleis v. Johnson, 354 N.W.2d 609, 611 (Minn. App. 1984) (holding that subsequent construction of a new road does not change existence of easement, so long as the easement was necessary at the time of severance).  Changes after severance cannot serve as the basis for an easement by necessity.  Olson, 244 Minn. at 41, 68 N.W.2d at 647.  “Obstacles such as topography, houses, trees, zoning ordinances, or the need for extensive paving, may create conditions where an easement is necessary.”  Magnuson v. Cossette, 707 N.W.2d 738, 745 (Minn. App. 2006). 

            Here, the crucial issue is the necessity of the easement at separation of title.[1]  We hold that there is a genuine issue of material fact as to the necessity of the easement at separation of title.  The record is insufficient to determine whether Lot 2 was landlocked at separation of title and whether the easement was reasonably necessary for the beneficial enjoyment of the property at that time.  Romanchuk,215 Minn. at 163, 9 N.W.2d at 426.         

            Although the parties to this appeal discuss easement law in the context of landlocked parcels, they point to nothing in the record to show that Lot 2 was landlocked when title was severed, and the district court did not address this issue.

The Tuluies note an aerial photograph taken in 1990 to show that the easement was necessary at separation of title.  Without expressing an opinion as to when separation of title occurred, we note that the photograph from 1990 does not show whether or not the easement was necessary to Lot 2 at that time.  The photograph does not indicate any property lines or the location of the alleged easement.  Nor does the photograph show that there were no other reasonable means of access to Lot 2.  Furthermore, nothing else in the record indicates that Lot 2 lacked other reasonable access at separation of title, whether in 1987 or 1990.  Thus, there remain genuine issues of material fact as to the date of separation of title, whether Lot 2 was landlocked as of that date, and whether an easement over Lot 1 was reasonably necessary.

            On notice of review, the Tuluies argue that the district court erred in ruling that the size of the easement is the same as the size of the paved driveway and that the plat establishes a 33-foot easement road.

            Any easement that the 1966 plat may have created was destroyed by merger when Lots 1 and 2 were conveyed to a single purchaser.  “The merger doctrine is intended to extinguish easements when title to the dominant and servient estates are united in one fee owner simply because one has no need for an easement in property one owns in fee.”  Pergament v. Loring Props., Ltd., 599 N.W.2d 146, 151 (Minn. 1999).  Extinguished easements are “not revived or reinstated when referred to in a subsequent conveyance.”  Id. at 149; see also Werner v. Sample, 259 Minn. 273, 275, 107 N.W.2d 43, 44 (1961) (concluding that reference to an extinguished easement does not create or revive an easement, “it presupposes an existing easement”).  Therefore even if the “Easement Road” appearing on the plat created a valid easement in 1966, the merger doctrine destroyed it when both lots were subsequently held in unity of title.  The district court did not err in declaring the easement shown on the plat a nullity and in establishing the easement, if any, in the location and with the dimensions of the current paved driveway.

            Finally, the Tuluies also move to strike a portion of the Albertsons’ brief, arguing that it raises an issue not presented to or considered by the district court.  The disputed portion of that brief discusses potential alternative access that Lot 2 might currently enjoy.  The Tuluies argued in the district court that the driveway currently provides the sole access to Lot 2.  But the Albertsons pointed out that current access is irrelevant.  Because the issue is whether the easement was reasonably necessary to Lot 2 at separation of title and not whether it is currently necessary, the motion to strike is granted.  

            Affirmed in part, reversed in part, and remanded; motion granted.

[1] Both parties agree that separation of title occurred in 1990, when Moyle regained possessory rights to Lot 2, and not in 1987 when Moyle conveyed fee title in Lot 1 to Kuhbander while retaining fee title to Lot 2.  This court reviews questions of law de novo, however, and need not accept the parties’ stipulation that severance occurred in 1990 rather than 1987.  See Alpha Real Estate Co. v. Delta Dental Plan, 664 N.W.2d 303, 311 (Minn. 2003) (reviewing a question of law de novo).  Because we find that there is a genuine issue of material fact, we need not reach the issue of when separation of title occurred.